Bai (Migration) - [2023] AATA 1911

Bai (Migration) [2023] AATA 1911 (20 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Xiaohong Bai
REPRESENTATIVE:  Mrs Madalina Eisenstat (MARN: 1804962)
CASE NUMBER:  2111433
HOME AFFAIRS REFERENCE(S):          BCC2019/3234323
MEMBER:Edward Howard
DATE:20 June 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2) of Schedule 2 to the Regulations
·cl 820.221(1) of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 20 June 2023 at 12:07pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – registered civil partnership and recognition by family and friends – extensive documentary evidence provided – application made more than 28 days after last substantive visa held – compelling reasons for not applying criterion – length of relationship – sponsor’s physical and mental health and applicant’s care – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65
Migration Regulations 1994 (Cth), rr 1.09A(3), 2.03A(5), Schedule 2, cls 820.211(2)(d)(ii), 820.221(1)
CASES
Ally v MIAC [2008] FCAFC 49
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 27 June 2019 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211.
The Tribunal has considered all of the evidence, which includes extensive documentary evidence provided to the Tribunal and is satisfied that a decision can be made without the need for a hearing.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Issues And Law
There is a two-stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bai (Migration)

Details

AGLC: Bai (Migration) [2023] AATA 1911
Case: [2023] AATA 1911
Decision Date: 20 June 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, where the applicant lodged their application more than 28 days after their last substantive visa expired. The primary dispute revolved around whether there were "compelling reasons" to waive the Schedule 3 criteria, which typically require an applicant to hold a substantive visa at the time of application. The decision was made by the Tribunal, presided over by Edward Howard.

The legal issues before the Tribunal were whether the applicant had demonstrated compelling reasons to justify a waiver of the Schedule 3 criteria, specifically in relation to the genuine and continuing nature of the relationship, and whether the application had been made within a reasonable timeframe given the circumstances. The Tribunal was required to consider the financial, household, and social aspects of the relationship, as well as the nature of the commitment between the parties, and whether the relationship was recognised by family and friends.

The Tribunal reasoned that compelling reasons existed to waive the Schedule 3 criteria. It found that the parties were in a long-standing, committed, and exclusive relationship for over five years, which itself constituted a compelling reason as per Clause 10.1 of Schedule 2 of the Migration Regulations (Amendment) 1996 NO. 75. Furthermore, the Tribunal accepted extensive evidence detailing the sponsor's serious and critical heart condition, including multiple surgeries and ongoing complications, and the significant emotional, psychological, and physical dependence the sponsor had on the applicant for recovery and daily life. The Tribunal also noted that the sponsor's adult children, who were unable to provide regular assistance, corroborated the applicant's vital role in the sponsor's well-being. The Tribunal concluded that separation would likely cause serious psychological injury and stress to the sponsor, necessitating further medical intervention.

The Tribunal remitted the decision for further hearing, indicating that the decision to grant or refuse the visa had not been finally made, but that the compelling reasons for waiving Schedule 3 criteria had been established.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Further, the Tribunal also accepts the evidence of the visa applicant and the sponsor, relating to the significant emotional, psychological and physical dependence of the sponsor on the visa applicant. The Tribunal considers this evidence to constitute further compelling reasons to waive the Schedule 3 criteria. In particular, the Tribunal refers to the following evidence:(i)the sponsor suffers from a serious and at times, critical, heart condition;(ii)in March 2019, the sponsor underwent surgery for the insertion of a pacemaker at the Gold Coast University Hospital. Unfortunately, there were ongoing complications and difficulties with the pacemaker which led to various debilitating symptoms;(iii)in 2021, the sponsor underwent revision heart surgery on two occasions at The Prince Charles Hospital, Brisbane, in an attempt to stabilise his deteriorating heart condition;(iv)the report of his cardiologist, Dr Robert Park, states that the pacemaker condition appears to be stable. Dr Park noted that the sponsor’s condition is a significant cardiomyopathy with worsened functional class;(v)Dr Park notes that the sponsor has undergone complex cardiac surgeries at two hospitals on three different occasions. He has also been suffering from mental health issues including panic attacks and stress. Dr Park was of the opinion that the assistance of his partner, the visa applicant, was assisting him in his gradual return to health;(vi)the evidence of the sponsor and his adult children is that the sponsor relies upon the emotional, psychological and physical assistance of the visa applicant in many aspects of life as a result of his heart condition and ongoing symptoms relating to panic attacks, anxiety and stress;(vii)the statutory declarations provided by his three adult children refer extensively to the serious and debilitating health issues that their father has suffered and continues to suffer, as a result of his ongoing condition;(viii)the evidence of the sponsor’s children confirms the sponsor’s own evidence that the visa applicant has been a crucial and vitally important part of the sponsor’s recovery, recuperation and ongoing ability to deal with his health conditions;(ix)the sponsor’s adult children are unable to assist their father on a regular basis. The sponsor’s daughter is a single mother who lives in Brisbane and works full-time. The sponsor’s two sons do not live in Queensland and have children and families of their own and also work full-time. One of his sons has a disabled child who requires extra assistance and care; (x)the Tribunal accepts the evidence of the parties that the visa applicant has been the vital and primary factor in helping the sponsor through her ongoing emotional, psychological and physical support for the sponsor, providing him with the ability to cope with the ongoing stress anxiety and physical limitations relating to the heart condition; and(xi)the Tribunal finds that in the event of the visa applicant having to leave Australia and be separated from the sponsor, it is highly likely that the sponsor would suffer serious and debilitating psychological injury and ongoing emotional stress, which would have a serious negative impact having regard to his heart condition. It is further likely that the sponsor would, as a consequence, require medical intervention in relation to mental health issues. Conclusion on whether there are compelling reasons

Ratio Decidendi

Legal Principle Established

In considering the issue of ‘compelling reasons’, the Tribunal has had regard to the Migration Regulations (Amendment) 1996 NO. 75 and in particular to the Explanatory Statement. Clause 10 of Schedule 2 gives examples of circumstances in which a waiver may be justified. Clause 10.1 states that the reasons must be of a “strongly compassionate nature” and refers to such reasons as including those ‘where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer’. In the present case, the parties are already in a long-standing relationship which has been in existence for two years or longer, namely for a period of more than five years. As noted above, the Tribunal has found that at the time of application and the time of this decision, the parties have been in a committed, exclusive relationship for a period in excess of five years. The Tribunal considers that the evidence of this long-standing, genuine relationship between the parties’, constitutes a compelling reason to waive the Schedule 3 criteria. Further, the Tribunal also accepts the evidence of the visa applicant and the sponsor, relating to the significant emotional, psychological and physical dependence of the sponsor on the visa applicant. The Tribunal considers this evidence to constitute further compelling reasons to waive the Schedule 3 criteria. In particular, the Tribunal refers to the following evidence:(i)the sponsor suffers from a serious and at times, critical, heart condition;(ii)in March 2019, the sponsor underwent surgery for the insertion of a pacemaker at the Gold Coast University Hospital. Unfortunately, there were ongoing complications and difficulties with the pacemaker which led to various debilitating symptoms;(iii)in 2021, the sponsor underwent revision heart surgery on two occasions at The Prince Charles Hospital, Brisbane, in an attempt to stabilise his deteriorating heart condition;(iv)the report of his cardiologist, Dr Robert Park, states that the pacemaker condition appears to be stable. Dr Park noted that the sponsor’s condition is a significant cardiomyopathy with worsened functional class;(v)Dr Park notes that the sponsor has undergone complex cardiac surgeries at two hospitals on three different occasions. He has also been suffering from mental health issues including panic attacks and stress. Dr Park was of the opinion that the assistance of his partner, the visa applicant, was assisting him in his gradual return to health;(vi)the evidence of the sponsor and his adult children is that the sponsor relies upon the emotional, psychological and physical assistance of the visa applicant in many aspects of life as a result of his heart condition and ongoing symptoms relating to panic attacks, anxiety and stress;(vii)the statutory declarations provided by his three adult children refer extensively to the serious and debilitating health issues that their father has suffered and continues to suffer, as a result of his ongoing condition;(viii)the evidence of the sponsor’s children confirms the sponsor’s own evidence that the visa applicant has been a crucial and vitally important part of the sponsor’s recovery, recuperation and ongoing ability to deal with his health conditions;(ix)the sponsor’s adult children are unable to assist their father on a regular basis. The sponsor’s daughter is a single mother who lives in Brisbane and works full-time. The sponsor’s two sons do not live in Queensland and have children and families of their own and also work full-time. One of his sons has a disabled child who requires extra assistance and care; (x)the Tribunal accepts the evidence of the parties that the visa applicant has been the vital and primary factor in helping the sponsor through her ongoing emotional, psychological and physical support for the sponsor, providing him with the ability to cope with the ongoing stress anxiety and physical limitations relating to the heart condition; and(xi)the Tribunal finds that in the event of the visa applicant having to leave Australia and be separated from the sponsor, it is highly likely that the sponsor would suffer serious and debilitating psychological injury and ongoing emotional stress, which would have a serious negative impact having regard to his heart condition. It is further likely that the sponsor would, as a consequence, require medical intervention in relation to mental health issues. Conclusion on whether there are compelling reasons